New article in Professional Artist magazine. by Gwenn Seemel (CC BY 2.0)

New article in Professional Artist magazine. by Gwenn Seemel (CC BY 2.0)


Federal Court Rules Against Blacklock’s: Business Models Always Subject to Copyright Fair Dealing Rights

The Federal Court of Canada issued its much anticipated copyright decision yesterday in the lawsuit launched by Blacklock’s Reporter, an Ottawa-based online paywalled news site, against many government departments. I discussed the case in a Canadaland podcast earlier this year, highlighting some of Blacklock’s business strategies that include using the access to information system to trace the use of its articles by government subscribers and recipients of articles from third parties. Blacklock’s sued the Department of Finance for $17,209.10 over two articles that were sent to government officials from a paying subscriber concerned with comments found in the article. The articles were subsequently forwarded to several media relations personnel within the department.

The court acknowledged that there are concerns with some of Blacklock’s business practices (the government argued that it engages in copyright trolling), but concluded that it could address the case with only a fair dealing analysis. Affirming well established Supreme Court jurisprudence on fair dealing, the court emphasized that fair dealing is a user’s right that must not be interpreted restrictively. In this case, the court had little trouble finding that the department’s use of the articles qualified as fair dealing given that it was done for a proper research purpose, involved a limited distribution, the originals were obtained legally by a paying subscriber, and officials had a legitimate interest in reading the articles in order to hold Blacklock’s to account for questionable reporting.

The recognition of the right to read is particularly noteworthy:

What occurred here was no more than the simple act of reading by persons with an immediate interest in the material. The act of reading, by itself, is an exercise that will almost always constitute fair dealing even when it is carried out solely for personal enlightenment or entertainment.

While Blacklock’s tried to rely on its website terms and conditions to argue that the subscriber should not have forwarded the articles, the court ruled that it failed to ensure that subscribers were aware of the contractual limitations. More importantly, the court stated that it could not apply the terms to downstream users such as the government officials, adding “it also goes without saying that whatever business model Blacklock’s employs it is always subject to the fair dealing rights of third parties.”

Some have expressed concern that the ruling may harm paywall business models, but as the court notes:

Nothing in these reasons should however be taken as an endorsement of arguably blameworthy conduct in the form of unlawful technological breaches of a paywall, misuse of passwords or the widespread exploitation of copyrighted material to obtain a commercial or business advantage.

In other words, the foundation of a paywalled business model is not implicated by this decision.  Rather, this ruling rightly applies fair dealing, consistent with the growing number of Canadian cases that have emphasized the importance of granting user’s rights a large and liberal interpretation.